lc290 Partial Defences to Murder report - Law Commission

sentence, partly because it was felt to be often the only defence to murder which
is available to many abused women who are “driven to kill”. 35
5.25 These groups were concerned that many abused women are terrified of a
psychiatric diagnosis and of being viewed as “mad”. This reluctance to accept a
mental illness label is, in their view, understandable as the reactions of the
women in question are, in one sense, quite normal responses to the abnormal
violence and abuse to which they have been subjected. Yet, as the Royal College
of Psychiatrists observed, these conditions can affect their cognitions and
reactions so that they do not perceive the options for escape in the same way as
an “ordinary person” would do.
5.26 In addition, these groups thought that pathologising of the woman could and did
have adverse consequences with regard to her subsequently obtaining custody
of or access to her children.
5.27 Notwithstanding their stated reservations about the potential adverse impact of its
operation in such cases, with one exception, none of these groups recommended
a new formulation for the defence. 36 They limited themselves to observing that
the current wording of section 2 is preferable to the other alternatives because it
is the least “narrowly medically defined” version.
5.28 In addition, these groups referred to a further cause of dissatisfaction with the
defence, namely that, in their view, the courts and juries frequently lack the expert
evidence which would enable them to understand the ways in which fear, anxiety
and despair can affect a person’s mental state and their assessment of their
current and future safety.
Evidential concerns
5.29 Some psychiatrists expressed concern about differences in the levels of
knowledge and experience among psychiatrists who are called to give evidence
on issues of mental abnormality in murder cases. Some women’s groups were
critical of what they see as a lack of understanding among some psychiatrists of
the dynamics of domestic violence.
5.30 One experienced judge raised evidential concerns of a different kind. He made
the point that sometimes an accurate diagnosis of the defendant can only be
made after the defendant has been observed and treated over an extended
period in a secure unit in a mental hospital. That is generally not practicable
before the trial as most defendants facing murder charges are kept in prison. The
one or two interviews in prison by a consultant psychiatrist, which are all that can
35 In this respect our proposals in relation to provocation are significant. Southall Black
Sisters argued that one reason why historically the defence has been “more accessible” to
women is that it marries with the notion that women are “weak and emotionally unstable”.
36 Southall Black Sisters asked whether the defence can be reformulated so that “different
forms of depression can be incorporated without having to meet strict clinical diagnosis of
mental disorder which can be restrictive”.
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